The Ninth Amendment—our resident anarchic and sarcastic “constitutional jester”—mocks the effort of scholars and judges alike to tame and normalize constitutional law.
The Amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist, constitutional skeptics would have had to invent it.